The Information Rights Tribunal [sic] has set 11th March, 2025 at 2pm for the hearing of a case concerning the Local Government Association's attempt to conceal details of its involvement in disciplinary and recruitment matters at Sandwell Council.
The LGA is a sort of medieval guild purporting to "support, promote and improve local government." As a fully fledged part of the British Establishment it is a largely unaccountable body despite being in receipt of considerable largesse from the taxpayer.
The LGA chose to involve itself in (a) the dismissal of Sandwell's Chief Executive, David Stevens; (b) the recruitment of Kim Bromley-Derry as his interim replacement; and (c) the appointment of Keir Starmer crony, Imogen Walker (the partner of Morgan McSweeney and now a Labour MP), as Interim Head of the Leader's Office. Following a Freedom of Information Request from a local journalist the LGA (backed to the hilt by the Information Commissioner) has released scant documentation in respect of these issues. In particular, the LGA is fighting to keep secret the identity of an individual at Hertfordshire Council who mysteriously used his/her official Council email account to involve him/herself in Sandwell's affairs.
On 11th March the Tribunal will decide whether to allow the Establishment to continue to hide its secrets or order it to make fuller disclosure of its involvement in this highly controversial affair.
According to AI the Independent Person is: an impartial individual appointed by local government to provide advice on allegations of misconduct against elected members. The role of the Independent Person is to help ensure that the public can trust how the council handles allegations."
Each Council appoints one or more Independent Persons, and therein lies an immediate flaw in the system.
How does this work in practice? Here are two examples from Sandwell Council:
1. Select cronies as "Independent Persons"
Mr John Tew was personally involved at the highest level in secret negotiations involving the largely free transfer of a £70m iconic building - The Public in West Bromwich - to Sandwell College just after the taxpayer had built a brand-new £70m building for it. Despite his dealings in this massive multi-million pound scandal Labour appointed Tew as the Council's "Independent Person". [It has to be said though that the hapless local Tory MP's and Councillors - before most of them were consigned to the dustbin of history - backed this grotesque scam.]
2. Richard Phillips - a case study - Cllr Melia standards hearing & complaint
Background
Cllr Melia assaulted journalist, Julian Saunders, before a Council meeting:
Melia rushed straight to Sandwell's (then) highly controversial Monitoring Officer, Surjit Tour, for protection and a written apology was prepared to be sent to Saunders. It was never sent - presumably because Tour became aware that Saunders had made a Police complaint and this would have been an immediate admission of guilt. However, Tour ensured that a copy of the draft apology dated three days after the assault was included in the bundle of evidence to be put before the Ethical Standards Committee as if it HAD been sent.
It stands to reason that if Saunders had ever received the apology he would (a) immediately published it on the Sandwell Skidder blog, and (b) passed it to West Midlands Police who were already investigating the assault. Further, when Melia attended the Magistrates's Court to plead guilty, his solicitor set out a remarkable piece of fiction in mitigation, but did not mention the alleged "apology". Clearly any Solicitor worth their salt would have mentioned that Melia had rushed to send a written apology to his victim, but this was not the case here.
Melia was prosecuted for the assault and was duly convicted by Dudley Magistrates upon his guilty plea. Saunders also made a standards complaint against Melia.
Tour appointed the supposedly independent Miranda Carruthers-Watt to prepare a report. She interviewed Melia who falsely claimed to her that he had sent Saunders the written apology referred to above. Below the subscription we are taking the unusual step of setting out the correspondence on this subject between Saunders/Tour/Carruthers-Watt for the record, but suffice to say that - to Tour's immense satisfaction - Carruthers-Watt could not be bothered to seek documentary proof from Melia that he had sent the apology and/or amend her Report to show that she had asked for the evidence, but that Melia had failed to supply it. Again to Tour's satisfaction, she then decided Saunders was not needed to give evidence at the standards hearing. Tour duly blocked him from doing so. [For the sake of completeness Carruthers-Watt made a mealy-mouthed comment at the hearing that she "hadn't seen any evidence of the apology having been sent" but STILL failed to draw the obvious conclusion from this. In any event she had at least 19 days pre-hearing to clarify the position and amend her Report accordingly but chose, for whatever personal reason, not to do so.]
Saunders did have one small procedural victory in that he had Cllr Rizwan Jalil removed from sitting on the hearing panel as Jalil has been making threatening phone calls to him - including one at 10pm on a Saturday night.
The Hearing
The appointed panel was made up of three Labour Councillors, one Tory, a supposedly independent legal adviser, and Richard Phillips - the Independent Person. Two of the Labour Councillors were very close associates of Melia including the Chair, Cllr Keith Allcock. Allcock very aggressively prevented Saunders from giving any evidence at the hearing, and this decision was fully backed by Richard Phillips.
The hearing was in public in the Council chamber. Melia styles himself as a champion of the armed forces but was too cowardly to sit where he could be seen from the public gallery. Allcock - again backed by Phillips - allowed him to move and sit out of sight underneath the overhang of the public gallery.
When the issue of the apology came up Melia claimed that he had sent it and that if the Committee wanted him to sort through all his emails he could find it - even though he had not been able to find it in the months before the hearing. Allcock and the Committee, including the Tory Councillor and the Independent Person, Phillips, could not be bothered to wait for Melia to search his email account and simply carried on with the hearing.
Notwithstanding all of Monitoring Officer, Surjit Tour's, efforts Melia was unanimously found to be in breach of the Code of Conduct for Councillors. Hardly surprising given the video evidence above and Melia's guilty plea at the Magistrates' Court. Importantly, for the context of this piece, the Panel unanimously (i.e. including Phillips) found that Melia had shown no remorse whatsoever for the assault. The only logical inference from this is that the Panel - including Phillips - did NOT believe Melia sent the apology as he claimed (and which he could not find proof of doing). Indeed, as part of the sanctions the Panel recommended one was specifically that Melia send a written apology to Saunders - clearly totally unnecessary if the Panel - included Phillips - believed that he had already sent one.
[In a monumental "up-yours" to Saunders, Surjit Tour sent him "Melia's apology" - as ordered by the Panel for Melia to send - in the precise form Tour had slipped into the evidence bundle and bearing the same date!]
The Second Standards Complaint
Saunders then made a second standards complaint on the basis that Melia had again not complied with the Code of Counduct by, inter alia, failing to act with honesty and integrity; failing to act with reasonable care and diligence; bringing the standards investigation and hearings process into disrepute; and failing to cooperate fully with the standards process. The grounds were, inter alia, that he lied to the Monitoring Officer, Miranda Carruthers-Watt and to the Panel about sending the apology.
Tour didn't handle the complaint (although nothing in Sandwell happened without him pulling the strings) but handed it to a minion at the Council, Deputy Monitoring Officer David Wilcock. Wilcock was only at Sandwell for a short period, but is a qualified Solicitor of some years' standing.
Despite the documentation set out below, the evidence at the Panel hearing and the unanimous finding that Melia had shown no remorse whatsoever for the assault, Wilcock was able to find that as Tour had slipped the draft apology into the evidence bundle, and in the face of the actual evidence, that:
"[Melia] was able to produce a copy of the [my emphasis] original written apology in the complaint proceedings ... I am unable to conclude that [Melia] lied".
This is absolutely appalling from a Deputy MO and qualified Solicitor but worse still, Wilcock reported that the (anonymous) Independent Person had been consulted and fully agreed with his incredible findings. Saunders wrote to the Council who confirmed that the Independent Person was indeed Richard Phillips, the very person who had been on the original panel! but was now able to conclude that the apology had, indeed, been sent. Quite incredible although "normal" for Sandwell which was recently placed under Government "Special Measures" for two years due to "serious governance issues".
It is high time that the disciplinary system for councillors is taken out of the hands of their colleagues and and becomes a genuinely transparent and independent process.
Epilogue
Despite his appalling behaviour and criminal conviction, Melia is Deputy Mayor of Sandwell this municipal year, and will be Mayor next year.
Carruthers-Watt was City Solicitor at Salford Council - 2015 - 2020. Wilcock was Interim City Solicitor and Monitoring Officer (part-time) in 2021 and is now a part-time Solicitor "Corporate Projects" at Salford. Surjit Tour has just been appointed as City Solicitor and Monitoring Officer at, yes, you guessed it, Salford Council!
For more on Surjit Tour read numerous posts on the Skidder blog at sandwellskidder.blogspot.com and "Monitoring the Monitoring Officer" at crowmultimedia.blogspot.com
rottencouncils@gmail.com
A Crow Multimedia publication
The email correspondence about the non-existent "apology":
Email - Skidder to SMBC - 11/10/22
“Surjit Tour has sent me an investigation into Melia's attack on me.
Before I comment within the time limit specified please send me the supposed apology from Melia (which I have not received) and the newspaper articles in which he is alleged to have shown remorse.”
Email - Surjit Tour to Skidder - 17/10/22 (Part)
“Paragraph 7 of the arrangements explicitly states that the evidence gathered during the investigation is not shared with the parties during the ‘maxwellisation’ process. If you dispute any elements of the report, please can you state the extracts that you dispute and why. Your comments will then be forwarded to the investigator for her to consider prior to her completing the final report and submitting it to me for consideration.”
Email - Skidder to SMBC & Miranda Carruthers-Watt - 23/10/22
“THIS IS NOT A PRIVATE AND CONFIDENTIAL COMMUNICATION
On 11th October, and despite the time taken to deal with this blindingly-obvious matter so far, I was sent the draft Hoey Ainscough report excluding Appendix 1. I was ordered to reply (if so advised) within just 10 working days which I now do subject to retaining the specific right to comment on Melia's lie that he has apologised, and clarification of the news reports allegedly showing Melia expressing remorse for his attack on me.
I did write to the Monitoring Officer but, as usual, he has been obstructive and refused to provide the information requested. Hence why I reserve the right to respond when these issues are clarified.As it is, there is at least the implication that I am lying when I say there has been no apology and that is potentially defamatory. As it is, Hoey Ainscough says that it is important that Melia acknowledge his wrongdoing although I am sure this matter will now become subject to the usual cover-up.
I do not understand how Hoey Ainscough - who are no doubt being paid handsomely by the taxpayer - can simply make the bold assertion that Melia has apologised without providing any evidence of this whatsoever and in the enclosed document I refer to Melia's obligation to fully assist the standards investigation.”
Extracts from the enclosed document:
Paragraph 1.3
Of “... Hoey Ainscough Associates Limited who are providing support to the Council in respect of a number of matters …”
Comment: This comment raises clear concerns about Hoey Ainscough’s impartiality given that they are clearly earning fees on a number of SMBC matters.
Of: “I asked Cllr Melia if he would be prepared to apologise to Mr Saunders. Cllr Melia says that he has already apologised. It is not clear if that was an apology to the complainant or a general apology made for his behaviour.
Comment 1: Cllr Melia has NOT apologised to me.
Comment 2: It is a requirement of the Members Code of Conduct that councillors co-operate with standards investigations. Why were Hoey Ainscough seemingly unable to ascertain this basic information from Melia himself? What are they being paid for?
Paragraph 3.1
Of: “I arranged interviews [plural] with Cllr Melia …”
Comment: Why then were Hoey Ainscough unable to ascertain details of Melia’s alleged “apology”? [See also Paragrapgh 1.4 above.]
Of: “Appendix 1 [a representative section of media reports]”.
Comment: This has NOT been supplied to me. Further, I wrote to Tour, SMBC’s Monitoring Officer on 11th October, 2022 asking:
“Before I comment within the time limit specified please send me the supposed apology from Melia (which I have not received) and the newspaper articles in which he is alleged to have shown remorse.”
Tour has refused to forward the supposed apology or the newspaper articles referred to. Neither has he forwarded Appendix 1. Thus I specifically reserve my position and my right of reply in respect of those matters.
Of: “In my view, however, it is important that Cllr Melia acknowledge that his behaviour was not acceptable”.
Comment: following on from what is said above Hoey Ainscough have not established that Melia is sorry at all and Tour is not prepared to say in what form Melia’s alleged apology was [made] - probably for the simple reason there has not been one.
Comment: Hoey Ainscough are right to recognise my journalistic/media work. We also know which way this is likely to go noting the identity of the Monitoring Officer and his track record of exonerating Sandwell Labour Councillors.
This matter is NOT suitable for informal remedial process - even leaving aside the fact that Melia is STILL lying about an apology - because it involves an unwarranted physical assault of a journalist and damage to his recording equipment.
Of: “Cllr Melia says that he has apologised to Mr Saunders”.
Comment: This is an outright lie. He has NOT apologised to me. Tour was asked about the apology but, unsurprisingly, is refusing to provide any information of the alleged apology which is not provided by Hoey Ainscough either. I have placed on social media that Melia is lying about an apology and no doubt Hoey Ainscough or the Monitoring Officer will re-question Melia and amend the Report to show that no apology has been made to me.
Email: Skidder to Tour, Carruthers-Watt and Melia himself - 28/11/22
“THIS IS NOT A PRIVATE AND CONFIDENTIAL COMMUNICATION
Tour has written to me on 25th November, 2022 sending me what is supposed to be the final version of a Report by Miranda Carruthers-Watt into the incident when Melia assaulted me.
Tour and Carruthers-Watt appear to have totally ignored my email of 23rd October, 2022 when I pointed out that Ms Carruthers-Watt states twice that Melia has apologised to me when he has not and she cannot state any proof of Melia's assertion.
As there has been over one month since my email I rather assumed that the investigator - who is apparently being paid £3,600 plus vat - would have actually gone back to Melia and asked him where, when and how Melia says the apology has been made? Seemingly she has not done so.
I am copying in Melia to this so that HE can clarify the position. Clearly you and the investigator have not dealt with this. I will not be stitched-up here and at least I can expose Melia's lies when he is unable to confirm the fictional apology.
I also want this email placed before the Standards Committee if this matter is not clarified NOW.”
Email: Tour to Skidder - 29/11/22
“The issue you raised concerning the apology was referred to the Investigator to consider before the investigation report was finalised.
This issue will be considered by the Standards Panel if the Panel determines that Cllr Melia has breached the Members’ Code of Conduct. The Panel will be advised of the conflicting position you have raised.
I have raised this issue with the Chair of the Standards Panel (for procedural purposes) [the Chair being a close friend of Melia] and he concurs that the conflicting account as to whether an apology was provided will be a matter that the Panel will examine should Cllr Melia be found to have breached the Members Code of Conduct. You will be afforded the opportunity to make representations to the Panel in relation to the issue.” [This was a lie and I was specifically NOT allowed to make representations to the Panel.]
Email: Skidder to Tour, Miranda Carruthers-Watt (Hoey Ainscough) and Melia himself - 06/12/22
“THIS IS NOT A PRIVATE AND CONFIDENTIAL COMMUNICATION
I think when Mr Tour writes me stupid letters like his recent one he forgets that I am aware of his "history" when dealing with Standards and, indeed, other issues.
I have written to every serving Councillor informing them of the true position with regard to Melia's fictitious apology.
Ms Carruthers-Watt did not strike me as being an incompetent Solicitor and so I am perplexed why she has not simply asked Melia for proof of his assertion and placed his response in her Report. Perhaps I am wrong about her expensive abilities (£3,600 ex vat according to The Birmingham Mail yesterday) or perhaps she has been got at? Mr Tour is a Solicitor, and so why can't he ask Melia where, when and how this supposed apology was made?
As it is I fundamentally oppose the Report as I have indicated previously. As above, I am taking the appropriate steps to make Councillors aware of the reality.”
Email: Skidder to (almost) all Sandwell Councillors - 06/12/22
“Dear Cllrs
THIS IS NOT A PRIVATE AND CONFIDENTIAL COMMUNICATION
Cllr Melia is putting it about that he has "apologised" for assaulting me. He has not. Indeed he has taken to the press to say that he did nothing wrong, and has shown no remorse whatsoever.
But many of you will know that Melia was crying to the Police and the CPS to be allowed to accept a caution prior to the Court hearing (and, of course, a caution cannot be administered to a person who has not admitted the offence). Of course, he then pleaded GUILTY at Court.
Mr Tour is pulling some stunt and The Birmingham Mail yesterday reported that he had spent £3,600 on an investigator's report. Into what? As Darryl Magher pointed out - that's over a grand a second for the video of the incident!
I have written to the Criminal and asked him to state to whom he claims he has apologised to, and when and where this allegedly happened. As above, he certainly has NOT apologised to me. He has failed to reply, and so draw your own conclusion from that!
Perhaps if he wants to offer me an apology the Mayor will allow him to do so at the next full meeting?
Rest assured - if the Criminal is allowed to keep perpetuating this "apology" lie, this will be publicly exposed.”
Email: Surjit Tour to Skidder - 09/12/22
Further to your complaint against Cllr Melia, a Standards Panel hearing has been called to consider the investigation report in accordance with the Arrangements for dealing with complaints against members on Friday, 16 December at 11am. The hearing will take place in the Council Chamber at Oldbury Council House at 11am in open session, although the Panel will deliberate in private.
The Investigator has decided not to call any witnesses. It is a matter for the investigator as to whether she wishes to call any witnesses. You will not therefore be required to attend as a witness, however you are free to attend the hearing and observe the proceedings from the public gallery. [Why did Carruthers-Watt exclude me?]
The Panel is aware of the issue over whether an apology has been provided to you. The issue will be addressed by the Panel at the hearing. The Panel may call you to address the Panel on this specific issue if you are in attendance. [Again this was a lie and the Panel very aggressively prevented me from giving evidence.]
Email: Skidder to Members of the Ethical Standards Panel due to hear this matter and to Melia himself (extract) - 15th December, 2022
I have already written to you collectively concerning Melia's lie that he has apologised for his conduct when he has not - indeed he has spoken to the press trying to justify his - admitted - criminal conduct.
The Investigator and Tour refused to remove his allegation concerning the apology from the report before you tomorrow without asking Melia to provide evidence. Tour tells me - for what that is worth - that he has somehow appraised you of the contradiction concerning the fictitious apology. No doubt tomorrow - given the reticence of Tour and the Investigator to question Melia themselves about the apology - you will no doubt do so in public.
[The email also dealt with a request that a named Councillor be removed from the Panel as he was telephoning Saunders at home threatening him. This was actually agreed to!]
Following an internal inquiry Dorset's Monitoring Officer (MO), Jonathan Mair, was not in breach of a journalist's Article 10 rights and other rights when intercepting the private emails from him to a number of Dorset Councillors without their prior consent, including that of the new Leader of the Council, Cllr Nick Ireland (before he became Leader).
West Midlands journalist, Julian Saunders, was investigating Dorset Council's interim appointment - at Director-level - of disgraced former Sandwell Chief Executive, Jan Britton (further reading - see * below). Mair, together with Dorset Chief Executive, Matt Prosser, wished to prevent the journalist from contacting serving Councillors, and secretly arranged to have their mail redirected to the MO. Neither did Mair tell the journalist what he had done. Saunders found out about this and made a formal complaint.
The complaint was dealt with by Mair's Deputy, Grace Evans. Prior to the complaint Ms Evans was copied into correspondence saying that the journalist should be kept "under review", with the same email mentioned a case involving a prison sentence for a stalker . Nevertheless, Ms Evans felt able to deal with the formal complaint and to exonerate Mair. She found that although Saunders had journalistic rights and Article 10 rights, Mair had simply been "managing correspondence" so that this did NOT amount to interference with those rights. Of course, he was managing the correspondence of elected members without their knowledge or consent.
Ms Evans did not deal with the data protection and other issues arising from the interception of private emails to serving councillors. She did, however, make certain recommendations including:
1 The actual redirect should be lifted (something of a pyrrhic victory as Mair threatened the use of public funds to sue the journalist if he attempted further contact with Dorset Councillors); and
2 Prior consent of recipients should be obtained before re-directs are put in place.
There is no recommendation that the person sending emails should be advised of any re-direct.
Comment:
It is well known that in other councils Monitoring Officers and other staff are covertly reading the private emails of serving councillors. This weird ruling at Dorset is chilling for journalists and members of the public wishing to legitimately communicate with councillors. Councillors beware - Big Brother is watching you ...
Tony Blair thought bringing in the Freedom of Information Act 2000 (FOIA) was one of his greatest mistakes (presumably ignoring that unfortunate business in Iraq). But this is an overblown reaction since the Act is actually toothless. In addition to gross delay, national and local government have a panoply of powers to avoid disclosure of their secrets. Some, like Sandwell MBC, simply lie to the Information Commissioner (IC) and the Information Rights Tribunal, and do so with total impunity (posts passim and read https://thesandwellskidder.blogspot.com/).
Sandwell feature in the case reported below. Under former (Labour) Leaders Darren Cooper and Steve Eling (an employee of Rotherham Council), together with Chief Executives Jan Britton and David Stevens, corruption was rampant. The wild west days of the Cooper regime (when Eling was one of two Deputy Leaders) gave way to the institutionalisation of wrongdoing under the later disgraced Eling himself. Later, the last Government had no option but to appoint Commissioners to intervene for two years (at enormous cost to taxpayers) due to serious governance issues.
Eling and Britton brought back into the Council a highly controversial lawyer, Surjit Tour, as Monitoring Officer. Sandwell set about subverting the system for dealing with complaints into alleged breaches of standards. Despite episodes of gross misconduct by councillors, Tour was able to bat away the vast majority of complaints against them - mostly secretly. You can read about some of his antics here in "Monitoring the Monitoring Officer - A Case Study:
Incidentally, campaigners in Bristol faced a similar problem and eventually discovered that the Monitoring Officer had not upheld a single complaint for six years! The Council claimed it would review its complaints procedure.
It should have been obvious to all that the high number of standards cases at Sandwell was a symptom of a deeper malaise. This is not looking back with the benefit of hindsight since these issues were raised contemporaneously by a local journalist and others, but duly ignored (including from 2019 by a nascent Tory opposition - which has now been virtually wiped-out). Indeed the number of cases not only reflected the corruption of the Eling/Britton era but also infighting within the dominant Labour Group. The ruling junta split into warring factions, and, incredibly, members of the same party started using the standards complaints system to attack each other.
Sandwell is a Labour fief - at one time the Party held 73 of the 74 seats. There was shock at the strong Tory showing at the 2019 General Election, and even more so when the Conservatives later won some Council seats. At this point, some pro-Labour employees tried to curry favour with their political masters by bringing standards complaints against Conservative Councillors!
Each standards complaint is given a computerised code number and this number is used to keep the matter innominate when reported to the Standards Committee (where the public is routinely excluded for most of the meetings). Tour was absolutely determined to keep the cases secret except in a couple of high-profile cases where Eling and Britton specifically wanted the information made public.
A local journalist noted that Waltham Forest Council had replied to a FOIA request happily stating in succinct format: the name of the allegedly errant councillor, the date of the complaint, the allegation in general terms (e.g. "Failed to declare interests"), the name of the investigator and, finally, the outcome in the simple form of "upheld" or "not upheld". He duly made a FOIA request to Sandwell for the identical information from 2017 to 2021 (although the request for the identity of the investigator was eventually dropped before the eventual Tribunal hearing on the basis that whichever puppet was named on the papers, s/he was dancing to Tour's tune). [For the sake of completeness, the Waltham Forest response was not quite complete as it said it had "lost" some of the records entirely!]
Inevitably, Sandwell chose to lie as its default position, and refused to answer using the claim that the information was readily accessible elsewhere when, of course, it was not. Upon Internal Review the failing Council changed tack and claimed that although it used a computerised system to record each and every complaint it could not set out the specific information requested (as above) without searching electronic records, emails AND paper documents. Accordingly, Tour pleaded s.12 FOIA (cost of compliance) to keep the information secret. He claimed that there were an astonishing 74 cases in the period covered and that it would take more than 18 hours to collate the information (the effective limit allowed by the Act).
It is another weakness of the FOIA that s.12 is an all or nothing provision. If the Council thinks it will take more than 18 hours to collate the reply it does not have to reply at all, but simply claims the protection of the section. It does not have to actually spend 18 hours on the Request and then stop. It also does not have to make partial disclosure of anything it has actually collated since that might - allegedly - provide a misleading picture. Thus Sandwell claimed that no less than three staff had already spent an astonishing 25 hours trying to collate this information (which was all on the Monitoring Officer's computer if anyone cared to look) and had got nowhere near dealing with all the cases. What this says about the competence of the staff allegedly involved in this task is a matter of conjecture, and it is not by any means the first time the legal department has claimed that the Council's computer system is inadequate for many simple tasks (post passim concerning the alleged defects in systems bought with substantial taxpayers' funds from CIVICA and iCasework i.e. defects alleged by Sandwell solicitors themselves rather than the author).
The Council put no witness statement or live witness before the Tribunal but, notwithstanding a well-documented history of its staff lying to the IC AND to the Tribunal, Sandwell was simply believed. The whole of the information requested for this period is to remain secret.
Two other points arise from this. Again, notwithstanding Sandwell's blatant past dishonesty, the IC also believed Sandwell, and then it (rather than the Council) applied to strike the Tribunal appeal out at an early stage. In particular it said the Waltham Forest case was different since it MIGHT have different ways of recording its cases and the FOI was for a two year period involving just 24 cases as opposed to Sandwell's 74 in the 2017 to 2021 period. The Tribunal agreed with the IC that 24 cases as opposed to 74 cases was a material point of difference, but the obvious outcome of this is that the worse a council's behaviour is, the more likely it will be allowed to keep its doings secret. Since there is no "public interest test" when the s. 12 exemption applies, councils with an awful record can claim the costs exemption whereas ones with low numbers of standards cases will be forced to cough up the information. Was that really what the Act intended?
There is also a curious part of the Tribunal's decision:
"The Council did suggest during the hearing that their in-house solicitor could answer factual questions to the Tribunal, but the Applicant objected to this suggestion and the panel decided this was not necessary in order to reach a fair decision."
In fact, Sandwell's Counsel offered the Solicitor up but only on the basis that HE wouldn't allow the Applicant to cross examine her. Whilst the reader may be surprised that (a) solicitors are now so pusillanimous they can dish it out but can't face questioning themselves, and (b) a Council's barrister can dictate the terms in which evidence is presented to a Tribunal in this high-handed way. The case report does not record the fact that the Applicant specifically objected to one-sided evidence being put to the Tribunal in this extraordinary way and that he considered it wholly inappropriate not to be able to cross-examine a witness.
The Freedom of Information Act 2000 is a feeble piece of legislation as it is, but it includes a criminal offence where information is deliberately withheld, destroyed etc. However, even when faced with multiple examples of a local authority lying to it and subverting the Act the ICO has declined to take any action. Things get no better at the Information Rights Tribunal where that body is, apparently, unconcerned when presented with false evidence
Sandwell Metropolitan Borough Council (SMBC) has repeatedly lied to the ICO for several years with complete impunity. Now a local journalist writing on Sandwell issues has pointed out a major discrepancy in a case presented to the First Tier Tribunal. Another feature of this matter is the incredible length of time it takes to get to this truth - in this case, literally years.
Here is a letter (with minor redactions) the journalist sent to the Tribunal and ICO last December. Inevitably, there has been no response whatsoever.
[Sandwell is no longer in "Special Measures" but shows few signs of improvements in the "poor governance" of yore.]
Email - 13/12/23
THIS IS A PRIVATE AND CONFIDENTIAL COMMUNICATION FOR 28 DAYS ONLY
I have repeatedly informed the ICO and Information Rights Tribunal of the corruption influencing SMBC to lie to the IC and the Tribunal. The only outcome of this has been abuse of me personally and, in one case, mockery of me by a Judge of the Tribunal in the course of a live hearing (which will shortly be the subject of further correspondence). I would respectfully remind the Tribunal and the ICO that SMBC are currently in Government "special measures" due to serious governance concerns (at huge cost to the taxpayer).
Case EA/2019/0179 arose from the wrongful suspension by SMBC of the secretaries working for Cabinet members on the basis of a false allegation. I made a FOIA request in respect of the sordid affair which was substantially refused. The matter proceeded via the ICO to a full Tribunal hearing led by Judge Holmes.
Although SMBC had (once again) lied to the ICO about the availability of disclosable documentation, a large tranche of same was magically "found"" prior to the Tribunal Hearing and 631 days after the date of the original request.
David Stevens, the now disgraced and former Chief Executive of SMBC, gave evidence both orally and in writing. SMBC played the same argument it also used in another Tribunal hearing. Stevens dealt with my complaints about SMBC's late disclosure of documents by informing Judge Holmes and the Panel that he had ordered an "investigation" into the original handling of my FOIA request. [Editor's Note: needless to say nothing ever came of thisalleged investigation.]
In respect of the substantive issue he played a trick also used by SMBC at another Tribunal Hearing, telling the Tribunal that he had ordered a brand new investigation into the substantive issue (here, the wrongful suspensions) so that SMBC could rely on s.31 to avoid further disclosure since that may prejudice the ongoing "new" investigation. (See further below.)
I made a further FOIA request in respect of the alleged new investigations by the now disgraced Stevens. Whilst this has only been partially successful, new documentation disclosed casts considerable doubt on the evidence given by Stevens. I should add that SMBC - once again - only managed to find documentation which it had "missed" when dealing with the original request AND an internal review after the intervention of the ICO.
It is noteworthy that the actual hearing was part-heard on the original date of 30th October, 2019 and went over to a second date being 30th January, 2020.
It is now clear that Stevens did order a desk-top evaluation of the handling of the original FOIA - probably by a senior employee called Neil Cox - but that this was concluded by mid-November, 2019 - at the very latest - with a decision not to continue with any further action. Whilst this was after the date of the first half of the hearing it was some two and a half months before the second half of the hearing but that information was deliberately concealed from the Panel. Stevens admitted at bundle page 119 para. 11 that the preliminary "fact finding" was done on 13th August, 2019 but at para 14 on the same page he added, "I can confirm that this matter is being looked into to understand why this occurred". Neither he nor Mr Hopkins of Counsel informed me, the ICO, or the Tribunal itself that no further action was being taken when this was known weeks before the second part of the hearing.
Stevens did also commission a supposedly independent report from West Midlands Employers (WME) into the actual suspensions, which SMBC has also refused to disclose via my second FOIA request. I say that WME is not truly "independent" but the real relevance here is, again, the dates. At page 119 para 13 of the bundle Stevens said he received the Report on 17th October, 2019. [Editor's Note: BEFORE the first hearing.] He stated, "The report indicates that the matter [i.e. the suspensions] was not dealt with appropriately. The report considers whether the Council should be taking any action, disciplinary or otherwise, against the officers who dealt with the matter".
The "independent" Report was commissioned very shortly before the Tribunal hearing was due - I say in a deliberate attempt to nix it - but Stevens told the Panel (bundle page 121 para. 23) "The matter is still live: my investigation could result in action being taken against other council officers for their conduct during the suspension, investigation and handling of the original FOI. Public disclosure in these circumstances would be highly prejudicial to this investigation". Leaving aside - for now - that this was straight out of the playbook used by SMBC in another Tribunal case and - I say - that the "independent" report was due to be a whitewash, the fact is that the latest FOI clearly shows that by December, 2019 any issues arising from the Report were concluded with the last communication on the subject dated 6th January, 2020 - 24 days before the second half of the hearing. Neither myself, the ICO or the Tribunal were informed of this.
For the avoidance of any doubt SMBC stated in the second FOIA response that the outcome of the investigation into the suspensions "was that no further action should be taken against any officer". If that was actually in the Report then Stevens knew this even before he wrote his original statement and before he gave live evidence to the Tribunal. I was under the impression that constitutes perjury? In any event, he definitely knew before the second hearing but allowed the deceit to lie on the record.
There were solicitors from SMBC as well as Mr Hopkins of Counsel at both hearings but the facts were concealed. Yet as Judge Holmes's judgment reads at para. 82:
"Mr Hopkins went on to refer to the statement of David Stevens at, at para 23, where he states that the matter is now live again and could result in a further investigation. If there is any doubt in January, 2018. there is no doubt now, and there could be further disciplinary action (i.e. against other persons, not the secretaries). There would be dangers if this information was put into the public domain before any investigation had run its course ..."
Whilst Mr Hopkins has been very willing to make written attacks on me in a number of Tribunal cases only to withdraw them at the commencement of live hearings, I somehow doubt that he has deliberately tried to mislead the Panel but Stevens and/or SMBC Solicitors did so mislead.
I understand that the Panel eventually concluded, in effect, that my original FOIA had been too early and that it should view the position as at January, 2018 but the fact remains that much Tribunal time was taken up with arguments about a supposed ongoing investigation which had, in fact, been concluded. For example, Mr Hopkins made submissions about the possibility of a "steps direction" given the supposedly ongoing "new investigation". If the Tribunal was aware that there was no further ongoing investigation would it have found differently? Possibly not, but I am thoroughly sick of having MY character and reputation impugned by SMBC xxxxxxxxx when they have repeatedly lied to the ICO and the Tribunal over a period of several years. Just recently the ICO - xxxxxxxxxxxxxxxxxxxxxxxxx - applied twice (and failed twice) to strike out further Appeals to the Tribunal. I am just wondering when someone in authority is going to get a grip on all this and ensure that firm action is taken against SMBC employees (including solicitors) who continue to act unlawfully and mislead the Tribunal?
The Information Rights Tribunal has refused the Information Commissioner's application to strike out an appeal relating to the application of s.42 Freedom of Information Act 2000 and the question of legal professional privilege (LLP).
The Appellant alleged that a local authority Monitoring Officer deliberately and unlawfully failed to disclose material documents pursuant to a Subject Access Request (SAR) and then fraudulently and/or dishonestly sought to conceal his misconduct by transmitting the SAR response to the applicant via a third-party firm of solicitors. The local authority refused to disclose documentation relating to the instructions to the third party firm on the basis that they were subject to LPP. The Appellant commenced Tribunal proceedings.
Curiously, the Information Commissioner made the strike out application rather than the local authority even though, on the basis of the Decision Notice, he had no special knowledge of the case and had simply decided that because third party solicitors were involved s.42 "automatically" applied. He presented no additional evidence or representations in support of the strike out application.
A Judge of the Tribunal has decided that the appeal does raise a triable issue so that the matter should proceed to a full hearing. The case continues.
According to Grant Thornton, accountants, London legal firm, Bates Wells, has backed the Opinion of Anya Proops KC that councils may use taxpayers’ money to fund private litigation by employees - although, seemingly, on different grounds
Background
Sandwell Metropolitan Borough Council (SMBC) - currently in Government special measures due to widespread governance deficiencies - informed the Information Rights Tribunal that Anya Proops QC (now KC) advised in 2018 that it could use taxpayers’ funds to pay the legal costs of employees acting outside the course of their employment pursuant to Employers’ Liability principles. The Tribunal was told that Proops opined that councils owed their employees a duty of care even when on a frolic of their own. The writer dealt with Employers’ Liability cases for 18 years and this seems an entirely novel, and bizarre, restatement of the law. SMBC itself has repeatedly refused to release the details of Proop’s extraordinary Opinion or the case law she relied upon for this proposition.
SMBC duly relied upon Proop’s 2018 Opinion three years later as authority to fund private litigation by its Director of Public Health, Lisa McNally, against a journalist arising from comments she made via her personal Twitter account.
During the short course of his litigation Grant Thornton, SMBC’s controversial auditor Mark Stocks was informed that the purported indemnity of McNally was unlawful, but he declined to intervene. The case was struck out at the earliest opportunity at a cost of taxpayers of £100,000. Had Stocks acted appropriately some of this loss could have been abated.
After the litigation commenced SMBC stuck to the argument which they say Proops KC had advanced that funding was lawful, but when referred to the wording of The Local Government (Indemnities for Members and Officers) Order 2004 (the 2004 Order) claimed that this also permitted them to fund the personal litigation of an employee.
(See earlier posts although please note that they were written with the author’s state of knowledge at the time of publication:
Of course, if (and it is a very big "if") Proops is right then one wonders why the 2004 Order was necessary at all, at least in respect of employees, and why it specifically refers to employees acting in qua employees?)
Bates Wells
For reasons that can only be guessed at, long after the McNally case had spectacularly failed, Stocks decided that Grant Thornton should belatedly seek its own legal advice on the legality of funding McNally, and then stated in a Report to SMBC that Bates Wells has provided them with a legal opinion that the 2004 Order did indeed permit taxpayer-funding of private litigation by employees, as Proops had also opined although, apparently, on different grounds.
Grant Thornton has also refused point blank to disclose their instructions to Bates Wells, the advice provided or the case law Bates Wells relied on. Incredibly, SMBC has “accepted” the Grant Thornton report without actually seeing the Bates Wells advice itself!
It is presently unclear whether Grant Thornton has charged the taxpayer for the Bates Wells “theoretical” advice, but early evidence suggests that it has.
Comment
The Proops KC “duty of care” Opinion seems wholly wrong and fantastical. It was fully supported, however, by no less than four Solicitors at SMBC - Surjit Tour (the Monitoring Officer currently on his way out), Maria Price (now head of legal and MO at Devon Council), Julia Lynch (now at the ICO), and Vanessa Maher-Smith (who remains at SMBC).
Such legal comment as exists in relation to the 2004 Order seems to clearly point to the unlawfulness of such private funding, as does the wording of the Order itself despite what Bates Wells allegedly say. It seems that the appropriate action would be for legislators to revisit the wording of the Order and make their intentions crystal clear.
